ORDER A.S. Tripathi, J.
1. This revision is filed against the judgment and order dated 7-2-1989 passed by VII Addl. District and Sessions Judge, Kanpur Dehat in Criminal Appeals Nos. 58 of 1988 and 60. of 1988 and judgment and order dated 24-11-88 passed by IInd Addl. Munsif Magistrate, Kanpur Dehat in Criminal Case No. 884 of 1988.
2. The trial Court by its judgment dated 24-11-1988 found one of the applicants, Vijai Kumar and Pradeep Kumar guilty under Sections 338 and 304A, I.P.C. They were fined only to pay Rs. 1000/- each and in default of payment of fine to undergo six months rigorous imprisonment.
3. The applicant, Kanhaiya Lal was convicted under Section 30 of the Arms Act and was sentenced to pay a fine of Rs. 1000/- and in default of payment of fine to undergo six months rigorous imprisonment.
4. In the appeal VII Addl. District and Sessions Judge held that the Reused, Parvendra Kumar was not found guilty and was acquitted. Accused, Vijai Kumar, was held guilty under Sections 304-A and 338, I.P.C. and instead of sentencing him to pay fine he was released on probation.
5. The appeal of Kanhaiya Lal was dismissed.
6. Brief facts of the case are that on 21-6-1984 at about 7 a.m. the children of the complainant, Jeetendra Kumar aged about seven years, his nephew, Meera aged about ten years and Sushil Kumar aged about six years were playing towards south west of the house of the complainant. Subsequently, the complainant heard the sound of fire. When the complainant reached the spot he found that a gun was lying in the hands of the applicant, Kanhaiya Lal, who was a constable in police department. The aforesaid three children were lying injured. The witnesses, Sita Ram, Chhedi Lal, Shanti Swaroop, Jagdamba and others were present when the complainant enquired from the witnesses and it was disclosed that Kanhaiya Lal was ready to go on his duty. Kanhaiya Lal had asked his nephew, Vijai Kumar to bring the gun from his house. When Vijai Kumar was bringing the gun it suddenly went off injuring the three children. The injured children were taken to hospital. Two of them were medically treated and recovered. One of them, Km. Meera later on died on account of that injury.
7. The applicants were prosecuted along with one Parvendra Kumar.
8. The case was investigated and charge-sheet was submitted.
9. The prosecution had examined P.W. 1 Devi Prasad, P.W. 2 Mahadeo, P.W. 3 Chhedi Lal, P.W. 4 Shanti Swaroop, P.W. 5 Jeetendra Kumar, P.W. 6 Sushil, P.W. 7 Sita Ram, P.W. 8 Haribash Kumar, P.W. 9 Sub-Inspector, Sri M. L. Pandey, P.W. 10 Sub-Inspector, Sri R. C. Sachan, P.W. 11 Dr. Vinod Bahadur Mathur and P.W. 12 Dr. T. P. Singh.
14. The learned counsel for the applicants emphasised that conviction of Kanhaiya Lal was not justified on record as he was not guilty under Section 30 of the Arms Act. The conviction of Vijai Kumar was fully justified according to the evidence on record as he had done negligent act in bringing the loaded gun which went off in the way causing injuries to the children.
15. The testimony of prosecution witnesses, P.W. 1 Devi Prasad, P.W. 3 Chhedi, P.W. 4 Shanti Swaroop and P.W. 5 Jeetendra Kumar clearly established that it was Vijai Kumar who came out with the loaded gun and the same was fired. The conviction of Vijai Kumar is, therefore, fully justified and is supported by the evidence on record and the appellate Court has released him on probation of good conduct as Vijai Kumar was a child of about twelve years at the time of occurrence.
16. In this revision the main emphasis was laid on the point that conviction of Kanhaiya Lal under Section 30 of the Arms Act was not justified and was against the weight of evidence on record.
17. The allegations in the first information report were that Kanhaiya Lal was a police constable working at a different station. He had come to his village. He had a licensed gun and he had left the gun inside the house loaded. Next morning he was to go on his duty in different district. According to the version given in the first information report Kanhaiya Lal had asked his nephew to bring gun so that he could go on duty in different district. It was 7 a.m. in the morning when Kanhaiya Lal after daily routine got ready to go on his duty. The allegation in the first information report that Kanhaiya Lal himself asked his nephew to bring the. gun is not supported by any evidence on record. The only -allegation was in the first information report that Kanhaiya Lal had asked his nephew to bring the gun. This fact is not corroborated by any evidence oh record. P.W. 1 Devi Prasad admitted that after hearing the sound of fire he went on the spot and the persons present there informed that Kanhaiya Lal had asked his nephew to bring the gun. He is not a witness of fact that Kanhaiya Lal had asked his nephew to bring the gun. P.W. 2 Mahadeo had become hostile. P.W. 3 Chhedi Lal also became hostile. P.W. 4 Shanti Swaroop admitted that Kanhaiya Lal was not present at the spot at the time of occurrence. He had not heard Kanhaiya Lal calling for gun by his nephew. The persons present on the spot had not stated that Kanhaiya Lal had asked for the gun by his nephew. This witness also did not see as to how the fire had taken place. He also did not see how this gun was brought by Vijai Kumar. P.W. 5 Jeetendra Kumar, who was injured in this incident also did not say that Kanhaiya Lal had asked Vijai Kumar to bring his gun. According to his version it was Vijai Kumar who was a boy of twelve years was coming with the gun jokingly on account of fun asked the witness to get aside otherwise he will fire. This was the mischievious act on the part of Vijai Kumar who had taken the gun from inside the house.
18. There is no other evidence on record to suggest that any of the witnesses had seen that Kanhaiya Lal had asked Vijai Kumar to bring the gun. In the absence of any evidence on the point it is not established that Kanhaiya Lal had asked his nephew Vijai Kumar to bring the gun.
19. As such in the absence of any evidence to this effect that applicant, Kanhaiya Lal, a licensee of the gun, had allowed Vijai Kumar to handle the gun in his knowledge. The gun was lying inside the house. Obviously it was loaded in the night. It was early hours in the morning when Kanhaiya Lal got ready to go on his duty. According to the evidence on record Vijai Kumar himself took up the gun and just on account of fun either jokingly or accidentaly it was-fired. The first information report version was that it was accidentaly fired. The witnesses also stated that the fire was accidental.
20. The negligence was certainly on the part of Vijai Kumar, a boy of 12 years, having taken out the gun from the house and it accidentaly went off where the children were playing.
21. There is nothing on record to suggest that Kanhaiya Lal had either deliberately or impliedly allowed Vijai Kumar to handle the gun which was loaded. It was clear on record that the gun was usually loaded in the house during night. In normal course during night in the villages the guns are kept loaded for personal safety. It appears to be a case of childish act on the part of Vijai Kumar who took out the gun and negligently fired the same by way of accident hitting the children playing nearby.
22. So far as the guilt of Kanhaiya Lal is concerned, there is nothing to suggest that how he had asked Vijai Kumar to bring the gun. Naturally the gun was kept inside the house of Kanhaiya Lal loaded. It was the mischief of the boy, Vijai Kumar to take out the gun mishandling the same and getting it accidentaly fired. In such a circumstance it could not be said that Kanhaiya Lal had committed an act of breach of the conditions of the licence.
23. The learned counsel for the applicants referred the case of Chhedi Singh v. State, reported in 1977 All Cri C 331. In that case licence holder of a gun had kept the same in another person's house and went to attend the call of nature. The gun was recovered in the meantime. The authority while dealing with this matter and the nature of the offence under Section 30 of the Arms Act held that a person simply leaving the gun in another house did not commit any offence under Section 30 of the Arms Act. In this particular case also the applicant, Kanhaiya Lal had left the gun in his own house. This was not the breach of any condition of the licence. The gun was loaded obviously during night. That also is not a breach of the licence, Kanhaiya Lal had not asked Vijai Kumar to bring the gun which was loaded. Therefore, it could not be said that Kanhaiya Lal had committed any breach of the licence punishable under Section 30 of the Arms Act.
24. It was the mischievious act on the part of Vijai Kumar, who was just a boy of twelve years of age. He took out the gun as is evident from the evidence adduced for fun and play. In this process the gun went off and injuries were caused to the children playing nearby.
25. After examining the facts and circumstances and the evidence on record there is nothing to suggest that Kanhaiya Lal had committed any act of omission or commission in breach of the conditions of licence. It was a case of accidental fire on account of the fact that the boy, Vijai Kumar took out the gun just for play. Therefore, in these circumstances, the applicant Kanhaiya Lal could not be held guilty under Section 30 of the Arms Act. The findings of the lower Courts holding Kanhaiya Lal guilty under Section 30 of the Arms Act as against the weight of evidence is not justified on record.
26. The revision is allowed to this extent that conviction of the applicant, Kanhaiya Lal is not justified. However, conviction of Vijai Kumar and releasing him on probation is justified on record.
27. The revision of Vijai Kumar is dismissed.